Article Nepal: President Declines to Authenticate New Amendment to Citizenship Act for Second Time

A senior official at the Office of the President of Nepal stated on September 21, 2022, that President Bidya Devi Bhandari had refused to ratify an amendment to Nepal’s Citizenship Law (Nepal Citizenship (First Amendment) Bill, 2079) by the September 20 deadline to authenticate the bill. This was the second time that the president had declined to sign the bill, raising fears of a constitutional and political crisis.

The bill had first passed in the House of Representatives on July 22 and in the National Assembly on July 28. On August 15, 2022, the president returned the bill to the House of Representatives for review with a message including “15 concerns and suggestions.” However, the bill was passed again by both houses on August 18 and September 2 without any changes. Article 113(4) of Nepal’s Constitution stipulates that “[i]f the President sends back a Bill with the information and if both the Houses reconsider the bill as it was presented or with amendments, and pass it and present it again to the President, the Bill shall be certified by the President within 15 days of its submission.” The official at the President’s Office, Bhesh Raj Adhikari, told Reuters that “[s]ince the government and parliament did not address her concerns, the president has refused to approve the bill.”

Background to the Efforts to Reform the Citizenship Rules

In Nepal, citizenship is regulated by Part 2 of the Constitution, the Citizenship Act 2063, and the Nepal Citizenship Rules, 2063. According to Home Minister Bal Krishna Khan, the Nepal Citizenship (First Amendment) Bill, 2079 was brought with the “objective of ensuring citizenship to stateless citizens as per the provisions of the constitution.” According to a Radio Nepal report, the home minister also said, “[t]here are thousands of people who are deprived of citizenship identity cards although their parents are citizens of Nepal. The lack of identity cards was further depriving them of education and other state facilities. I appeal with all to help create enabling environment to endorse the new bill and for headway to implement the law by formulating new laws.”

On May 23, 2021, the government had issued the Nepal Citizenship (First Amendment) Ordinance, 2078 to provisionally deal with the problem of certain stateless children by allowing them to acquire citizenship by descent if their parents are citizens by birth or if they are born in Nepal and “[their] mother is a Nepali national and the father cannot be identified.” However, on June 11, 2021, the Supreme Court of Nepal issued an interim stay order preventing the implementation of the ordinance.

Article 11(6) of Nepal’s Constitution stipulates that “[i]f a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for by the federal law.” On July 8, 2022, the government of Nepal withdrew a  previous controversial amendment that included a provision requiring foreign women married to Nepali nationals to wait seven years to become naturalized citizens. The amendment had been under consideration of the House of Representatives for four years and has been “pending” in Parliament since August 7, 2018. On June 21, 2020, the Committee on State Affairs and Good Governance in Nepal’s House of Representatives approved the amendment amid objections from three major parties.

Main Features of the New Amendment Bill

Section 4(1) of Nepal’s Citizenship Act allows persons who are born within Nepal’s territory before April 12, 1990, and are permanently domiciled there to acquire citizenship by birth. However, their children have not been allowed to acquire citizenship by descent, and the amendment bill brings the act in line with the Constitution to allow such children to acquire citizenship by descent.

According to reports, the amendment bill also grants citizenship by descent to a person who was born to a Nepali woman in Nepal and whose father is unidentified. However, the applicant’s mother must “make a self-declaration that the father is not identified. She will be liable for action if it is found that her claim that the father of her issue is not identified turns out to be wrong.”

The new bill also grants citizenship to a foreign woman married to a Nepali man once she initiates the process of giving up her current citizenship. The seven-year waiting provision is not included in the new bill. The bill also provides that nonresident Nepalis will be able to acquire citizenship but will not be “eligible to enjoy political and administrative rights.”

Reactions to the President’s Refusal to Sign the Bill

The ruling coalition, including the Nepali Congress, the Communist Party of Nepal (Maoist Centre), the Communist Party of Nepal (Unified Socialist), and the Janata Samajbadi Party, are in support of the bill, while the Communist Party of Nepal (Unified Marxist–Leninist, CPN (UML)) has been “backing the President’s call for its thorough review.” Five top leaders in the ruling alliance have said in a statement that the president had deprived many Nepalis of their right to citizenship by failing to approve the bill and that “[t]he unconstitutional move of the president has seriously insulted and devalued the federal parliament elected by the people.” Senior leaders of the opposition CPN (UML) took issue with the amendment for not including the provision requiring foreign women to wait seven years before acquiring Nepali citizenship. Surya Thapa, a senior leader of the party, told Reuters that “[w]e think such a sensitive and important issue should be decided on the basis of consensus among all political parties and not only by a majority.”

Most legal experts appear to hold that the president’s refusal to authenticate the bill goes beyond the ceremonial role of a head of state and violates the Constitution. In response to five writ petitions against the president, the Supreme Court has issued a show-cause notice to the President’s Office, asking for reasons why the president has not authenticated the citizenship bill on time “and why her office shouldn’t be directed to authenticate it.”

Tariq Ahmad, Law Library of Congress
October 24, 2022

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